Jeffrey D. Sadow is an associate professor of political science at Louisiana State University Shreveport. If you're an elected official, political operative or anyone else upset at his views, don't go bothering LSUS or LSU System officials about that because these are his own views solely.
This publishes Sunday through Thursday with the exception of 7 holidays. Also check out his Louisiana Legislature Log especially during legislative sessions (in "Louisiana Politics Blog Roll" below).

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7.8.12

To preserve liberty, LA must intervene in Court dispute

If you don’t have the rule of law, then no liberty is secure. This is
why the state of Louisiana needs to continue to contest a unilateral premature
curtailment of sorting out selection of the chief justice of its Supreme Court
that not only will sort out a legal puzzle, but also may which have far-reaching
constitutional implications for the entire country.

Controversy about this has ensued as with the upcoming retirement of Chief
Justice Kitty Kimball at
the end of the year, the longest serving member of the Court who becomes chief
justice is not the same person who has sat with and decided for the longest
period. Associate Justice Bernette
Johnson began to decide with the Court in late 1994, but was not elected to
it until 2000, after two other members. She was able to because of a consent
decree entered into by the state to settle a suit that claimed the state had
gerrymandered judicial districts on racial considerations.

But rather than redistricting or amending the Constitution to add a new
seat, for political
reasons the state assigned in the decree a circuit court spot to sit with
the Court, the position won by Johnson. Later, the state passed a law that mandated,
among others things, that the holder of that position get counted years prior
to getting elected to the Court to count for Court seniority. This declaration
was amended into the consent decree later.

Unfortunately, the original solution contravened the Constitution (as was found by the Court,
but which allowed the arrangement to proceed anyway), so Kimball decided to
call a special impaneling of the Court of its current members without the three
involved justices (Johnson and the two elected before her to the Court) and
with, as happens from time to time, using lower court justices specially
assigned to the case to decide on the Court – just like Johnson did for six
years, assigned to all cases – this matter of succession. Johnson then decided
to sue in federal court to enjoin the process claiming the law and amended decree
made clear she was to succeed Kimball.

The Court intervened against that, but recent appointee to the Eastern
District of Louisiana Judge Susie Morgan ruled
that it didn’t have standing to do so, but that the state did, and gave a
deadline of tomorrow for the state to contest. This means the ball is in the
court of Atty. Gen. Buddy
Caldwell, who undoubtedly would solicit Gov. Bobby
Jindal’s opinion on the matter on whether to intervene against Johnson and
the representatives of the decree individuals.

And Caldwell should. The rule of law remains a bedrock principle in any
functioning representative democracy because if those with power can make up
the rules as they go along – even if every single official of all political persuasions
goes along with it, as in this case – then no rights are protected as they are
added and discarded by whatever whim suits those in power. A free people cannot
be safe from government abuse under these conditions. The Constitution and its
processes must be followed, no matter how inconvenient, or changed. The panel
must decide whether any veneer of constitutionality existed in the actions of
two decades ago and, if not, then Johnson cannot be determined as the most senior
justice and the law granting her that (now otherwise moot) itself is
unconstitutional.

However, this brings up another question in that whether a federal
court-issued consent decree, where there was no
determination that the state had acted unconstitutionally according to
federal jurisprudence and alternative solutions that were constitutional under
the state’s jurisprudence existed, that creates a remedy that violates a state
constitution is itself enforceable. By pursuing this case, Louisiana can
present a vehicle by which this constitutional question may be addressed.

Regardless, with the issue complexity present, the panel idea seems the
best and does not default the obligation that the rule of law be followed.
These considerations more than justify the state on this matter to pick up the
baton that the federal court yanked out of the hands of the state’s Supreme
Court.

1 comment:

Does anyone actually believe that if the shoe was on the other foot, and it was a far-right extremist in Bernette Johnson's place, that Jeff would make the same argument? Hell no. Jeff's garbage throwing is reserved for liberals, and nothing will stand in the way because he knows who the enemy is. The funny part about Jeff is his rationalizing his way to the preconceived conclusion. The most transparently biased of all these loser Louisiana extremists. Here's the real story: Louisiana's powerful right-wing extremists tried to gerrymander blacks out of power entirely, and when forced to accept one, even today they can't seem to live with it. It's 2012, Jeff, and your stupid, antiquated views are outdated everywhere except Shreveport.

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